The court reaffirmed that a plea of alibi must be proven at trial, and an affidavit from the victim cannot quash serious charges, especially in cases of rape involving minors.

Headnote:(A) Indian Penal Code - Sections 120B, 366A, 323, 506(i), 376, 372, 373, 342, 212 - Quashing of proceedings - Petition filed by accused for quashing proceedings alleging no materials against him and claiming an alibi - Court held that the plea of absence on the date of occurrence is a plea of alibi to be proved during trial - Affidavit of the victim stating no grievance against the petitioner cannot be the sole basis for quashing the proceedings. (Paras 5, 13, 14)

(B) Criminal Procedure Code - Section 482 - Powers of High Court - High Court cannot record evidence while exercising powers under Section 482 - Quashment sought on grounds of settlement not permissible in cases involving rape of a minor. (Paras 13, 14)

Facts of the case:
The petitioner was implicated in a serious case of rape involving a minor victim, and he contended that he was abroad during the alleged date of occurrence. The victim later filed an affidavit stating she had no grievance against him, which the prosecution opposed.

Findings of Court:
The court found that the prosecution's allegation was made out prima facie based on the victim's statements and that the affidavit was an afterthought.

Issues: Whether the prosecution against the petitioner should be quashed based on his absence on the alleged date of occurrence and the victim's affidavit.

Ratio Decidendi: The court ruled that the plea of absence is a matter to be proven during trial and that the victim's affidavit cannot solely ground the quashment of proceedings in a serious case.

Result: Criminal Miscellaneous Case dismissed.

ORDER

Dated this the 7^th day of October, 2024

The 4^th accused in CP No.7/2011 on the files of the Judicial First Class Magistrate Court-II, Ernakulam, arising out of crime No.870/2009 of Chernanalloor Police Station, has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for short) with prayer to quash the proceedings against him.

2. Heard the learned counsel for the petitioner, the learned counsel for the 2^nd respondent/defacto complainant and the learned Public Prosecutor in detail.

3. On tracing the genesis of the case, FIR was registered on 11.10.2009, on getting information that accused Nos.1 and 2, hatched conspiracy, with intention to make money by subjecting the minor victim aged 16 years to sexual intercourse and thereafter they provided the minor victim to other accused. Accordingly, the prosecution would allege that accused Nos.1 and 2 facilitated sexual intercourse to be done by various persons including the petitioner herein; against the minor victim. The specific allegation against the petitioner herein, who initially arrayed as accused No.16 during the crime stage, and now as accused No.4 in CP No.7/2011, is that at 10 pm on 18.09.2009 he also subjected the minor girl to sexual intercourse at a houseboat in Alappuzha. Thus the prosecution alleges commission of offences punishable under Sections 120B , 366A, 323 , 506(i), 376, 372, 373 , 342 and 212 of the Indian Penal Code (hereinafter referred to as ‘ IPC ’ for short) by the accused, including the petitioner herein.

4. The learned counsel for the petitioner impugns the final report mainly urging the following points.

“1. It is pertinent to note that the petitioner was implicated as an accused without any materials and on the basis of a bonafide mistake. At the very inception of the investigation, the petitioner strongly contended that the petitioner was not available on that day alleged by the prosecution at the place mentioned by the victim/ prosecution.

2. As the investigating agency was hostile to the petitioner, the petitioner submitted a Crl MC as Crl MC No.901/2010 before this Honorable Court with a request to consider the materials produced by the petitioner and this Honorable Court was pleased to issue necessary directions to consider the materials produced by the petitioner to establish his innocence.

3. The investigating agency to substantiate their stand suppressed these materials and submitted the final report against the petitioner. The only assertion made in the final report is that he was available in India from 16.09.2009 to 21.09.2009.

4. While the petitioner was in Gulf, the petitioner received a call from a particular number (Mobile No. 9847357644) during the 2^nd week of October 2009 informing the petitioner that there is every chance to implicate the petitioner in a crime involving an offence under Section 376 IPC and it was also informed that if he is prepared to spare some amount to the victim, there is every chance for not mentioning his name.

5. A suo motu crime was registered by the Ernakulam Central Police against three named persons and also other 17 persons identifiable by sight as crime No.2220/2009 dated 10.10.2009 alleging offence punishable under Section 120B , 366A, 376 of the India Penal Code and the case was transferred to Cheranalloor Police Station as the offence happened within the jurisdiction of Cheranalloor Police Station. The Cheranaloor Police registered the crime as Crime No.870/2009 and proceeded with the investigation.

6. The petitioner was implicated in the crime without any authentic materials and the petitioner is surprised to know that he has been implicated in a crime of this nature as he had no prior acquaintance with the victim or any other co accused.

7. The continuation of the prosecution is an abuse of process of court in the light of the documents produced by the petitioner before this Honorable Court at the earliest point of time.

8. The affidavit sworn

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